Monday, February 11, 2019
Understanding More about Justice Kavanaugh's Dissent from the Supreme Court Order Temporarily Blocking Louisiana Abortion Law
Late last week, the Supreme Court temporarily stayed a new law that requires doctors performing abortion to have hospital admitting privileges.
The Supreme Court on Thursday blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority. That coalition underscored the pivotal position the chief justice has assumed after the departure last year of Justice Anthony M. Kennedy, who used to hold the crucial vote in many closely divided cases, including ones concerning abortion.
The court’s brief order gave no reasons, and its action — a temporary stay — did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October.
Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.***
In his dissent on Thursday, Justice Kavanaugh said he would have provisionally denied the stay to let the factual questions be sorted out. Notably, he said that the Texas decision was “the governing precedent for purposes of this stay application.”
The Fifth Circuit, he wrote, had predicted that the four doctors who provide abortions at three clinics could obtain admitting privileges. There was no dispute as to one of the doctors, he wrote, leaving questions about three of them.
If those doctors can obtain privileges, Justice Kavanaugh wrote, “the new law would not impose an undue burden” under the Texas decision.
“By contrast, if the three doctors cannot obtain admitting privileges,” Justice Kavanaugh wrote, “then one or two of the three clinics would not be able to continue providing abortions. If so, then even the state acknowledges that the new law might be deemed to impose an undue burden for purposes of Whole Woman’s Health.”
The right solution, he wrote, would have been to deny the stay and let the challengers return to court if the doctors could not obtain privileges.
Justice Kavanaugh's opinion is here, June Medical Services v. Gee. Kavanaugh applies the common-law principles for temporary injunctions by assessing whether the stay is needed to preserve the status quo and whether immediate harm is threatened. He finds that it is not, because the state has a regulatory transition rule under which the new law regarding doctors' privileges won't go into effect for 45 days.
Before us, the case largely turns on the intensely factual question whether the three doctors . . . can obtain admitting privileges. If we denied the stay, that question could be readily and quickly answered without disturbing the status quo or causing harm to the parties or the affected women, and without this Court’s further involvement at this time.
He says that the delay period is time for the doctors to apply for such privileges, and if denied, then seems to agree (as the state does) that there would be an undue burden on women's rights. Once the facts are more clear, and only if such privileges are denied thereby shutting down the clinics, then it would be the appropriate time for the plaintiffs to seek a preliminary injunction to enjoin the law.
This flips the usual understanding of preserving the status quo. The status quo is the last pre-dispute time before a new activity or change is inserted (as Justice Roberts reasoned in his opinion in Winter v. Natural Resources Defense Council). Here, the status quo is the operation of the clinics without the new law. It is the state that is disrupting that status quo with a new law who should have the burden of the delay while the case is resolved on its factual and legal merits. Which is the result of the majority's decision in the case.
Professor Mary Ziegler, on on Twitter says:
Kavanaugh's dissent in June Medical may foreshadow how the erosion of Roe unfolds. Court can always uphold restrictions by demanding more proof and drawing factual distinctions. Harder to understand the stakes of such a decision + allows for appearance of respecting precedent.
More commentary here:
In his one-man opinion denying the stay, Kavanaugh essentially showed that he doesn't feel bound by precedent at all in this matter. After all, the Louisiana law is identical to a Texas law that the Court already overturned three years ago. Kavanaugh didn't need "more information" to know that.
Instead, his dissent relies on, along other things, the transparently phony notion that Louisiana officials will be judicious in using the law they've already passed